On an issue of first impression, a California court has created a judicial exception to the “take” prohibition in the state’s fully protected species statutes. On March 20, 2014, the California Court of Appeal held that the live trapping and translocation of a fully protected species does not constitute prohibited “take” of the species. Center for Biological Diversity v. California Dept. of Fish and Wildlife, 2014 Cal.App. LEXIS 256 (March 20, 2014) (pdf). The decision addresses a common conundrum in California: whether actions to protect a species authorized by the state and federal endangered species acts are nevertheless prohibited by the state’s fully protected species law. The decision is the latest round in the long-running battle over the development of the Newhall Ranch project in northern Los Angeles County.

As a condition of approval of its project, the landowner agreed to implement various measures to protect the unarmored threespine stickleback (Gasterosteus aculeatus williamsoni) – a fish protected by the state and federal endangered species acts and also by the California fully protected species law. The measures included live trapping and transplanting of the stickleback away from construction areas. The petitioners argued that the trapping and translocation measures would necessarily result in “take” of the stickleback prohibited by the fully protected species law.

The court read the “take” prohibition in the fully protected species law in conjunction with the definition of “conservation” in the California Endangered Species Act to conclude that the measures to conserve a species, including trapping and transplanting the species, do not constitute “take” prohibited by the fully protected species law. The decision is an important interpretation of the interplay of the two state laws and should provide greater flexibility to project proponents seeking to implement measures designed to conserve a fully protected species.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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